BILL ANALYSIS
AB 1800
Page 1
Date of Hearing: March 14, 2000
ASSEMBLY COMMITTEE ON HEALTH
Martin Gallegos, Chair
AB 1800 (Thomson) - As Introduced: January 27, 2000
SUBJECT : Mental Health: Involuntary Treatment.
SUMMARY : Expands the conditions under which, and the length of
time for which a person may be involuntarily detained and
treated for mental illness. Specifically, this bill :
1)Expands the existing law definition of "gravely disabled,"
from indicating a condition in which a person, as a result of
a mental disorder, is unable to provide for his or her basic
personal needs for food, clothing or shelter, to mean a person
who either meets these criteria or has a history of mental
illness and again presents clear evidence of a recurrence that
is likely to result in serious harm to the person in the
absence of treatment.
2)Expands, from 14 days, to 28 days, the length of time for
which a suicidal person may be certified and detained for
treatment following an initial 72-hour hold. Repeals existing
law provision for a second 14 day certification after an
initial 14 day detention.
3)Requires, in order to continue to detain a person, a finding
at a certification hearing of probable cause to believe that a
person lacks the capacity to make informed treatment decisions
and is either gravely disabled or a danger to self or others.
4)Provides that a person may be certified for another 180 days
of community assisted outpatient treatment following an
initial 28 days of detention following an initial 72-hour
hold.
5)Requires persons committed due to grave disability,
dangerousness, or chronic alcoholism to be place in community
assisted outpatient treatment programs for 180 days if all of
the following conditions exist:
a)The treating physician thinks that the patient requires
continuing treatment and care under supervised conditions
to maintain and improve recovery and the person is
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sufficiently stable to benefit from community placement;
b)The person agrees to community assisted treatment;
c)The person does not present an immediate harm to self or
others.
d)A community assisted treatment program is available and
willing to accept the person.
e)A community treatment plan is prepared by the treating
physician and the treatment program is agreed to by all
parties.
6)Permits a patient to be returned to inpatient treatment for
the remaining days of the treatment certification if the
patient does not or cannot abide by the terms of the agreed
upon community treatment plan, including medication
compliance, and the person poses a risk of substantial
deterioration.
7)Expands the maximum involuntary detention period prior to
conservatorship for gravely disabled persons from 47, to 61,
days (72-hour hold, plus 28 day certification, plus 30 day
temporary conservatorship).
8)Expands the maximum involuntary detention period for dangerous
persons, from 180 days to one year, if proven by clear and
convincing evidence that the person is imminently dangerous to
others, as defined.
9)Repeals affirmative right of a person who is involuntarily
detained to refuse antipsychotic medication. Repeals
prohibition against administering medication against a
person's will without a capacity hearing in which it is
determined that the patient is incapable of refusing
treatment. Accordingly, repeals the right to appeal an
incapacity determination and the right to a writ of habeas
corpus.
10)Reduces standard of proof from "beyond a reasonable doubt" to
clear and convincing evidence to establish that someone is
gravely disabled, in conservatorship and postcertification
cases.
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11)Requires the standard of care for the mentally ill in state
prisons to reflect community standards.
12)Appropriates $350 million from the General Fund to the
Controller in 2000-2001 for the implementation of this act.
EXISTING LAW :
1)Expresses legislative intent to provide prompt evaluation and
treatment of persons with serious mental disorders, to protect
public safety and to safeguard individual rights through
judicial review, and to end the inappropriate, indefinite, and
involuntary commitment of mentally disordered persons.
2)Provides that a person may be taken into custody for a 72-hour
evaluation and treatment period, upon demonstration of
probable cause that the person, as a result of a mental
disorder, is a danger to others or him/her self, or is gravely
disabled.
3)Defines "gravely disabled" generally as a condition in which a
person, as a result of a mental disorder, is unable to provide
for his or her basic needs for food, clothing or shelter.
4)Provides that a person is not gravely disabled if that person
can survive safely with the help of responsible family,
friends, or others who are both willing and able to help
provide for the person's basic personal needs for food,
clothing or shelter.
5)Provides that a person may be certified and detained for not
more than 14 days of intensive treatment if the hospital staff
has found that the person is a danger to self or others, or
gravely disabled, and the person has been advised of the need
for, but has not been willing or able to accept, treatment on
a voluntary basis.
6)Grants a detainee the right to a certification review hearing,
to be held within four days of the date on which the person is
certified for intensive treatment, to determine whether or not
probable cause exists to continue to detain the person. The
person may no longer be detained if the certification hearing
officer finds that there is not probable cause to believe that
the person is a danger to self/others, or gravely disabled.
Also grants the detainee the legal right to judicial review by
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habeas corpus.
7)Requires a person certified for intensive treatment to be
released at the end of 14 days unless the patient either:
a)Agrees to receive further treatment on a voluntary basis.
b)Is certified for an additional 14 days of intensive
treatment because the person threatened or attempted
suicide during the 14 days or the initial 72-hour hold, the
person has not accepted treatment, and the person poses an
imminent threat of suicide.
c)Is certified for an additional 30 days of intensive
treatment because the person remains gravely disabled due
to a mental disorder or chronic alcoholism, and remains
unwilling or unable to accept treatment.
d)Is the subject of a conservatorship petition.
e)Is the subject of a petition for postcertification as an
imminently dangerous person.
8)Provides that a person may be postcertified for up to 180 days
following 14 days of intensive treatment if the person:
a)Has attempted, inflicted or made a threat of substantial
physical harm to another person after having been taken
into custody, and who presents a demonstrated danger of
inflicting substantial physical harm upon others.
b)The person attempted, or inflicted physical harm upon
another person, resulting in that person being taken into
custody, and the person presents a danger of inflicting
substantial harm upon others.
c)The person made a serious threat of substantial physical
harm upon the person of another within seven days of being
taken into custody, that threat having at least in part
caused the person to be taken into custody, and the person
presents a danger of inflicting serious harm upon others.
FISCAL EFFECT : Undetermined. This bill appropriates $350
million in 2000-2001 from the General Fund to the Controller for
implementation of this act.
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COMMENTS :
1)PURPOSE OF THIS BILL . The author proposes to revise the
existing involuntary treatment law and provide $350 million
for earlier intervention for those who have a history of
mental illness in order to give mentally ill persons access to
timely, more effective treatment. The author intends to
streamline the hearing process to combine in one hearing both
determinations for the need for commitment and the capacity to
consent to or refuse treatment. Eight other states have
enacted laws to provide structured, supervised assisted
outpatient treatment programs for the severely mentally ill,
the most recent of which is Kendra's Law in New York. The
author asserts it is past time for California to provide more
effective and humane treatment and commitment laws for its
residents.
2)The author notes that one of every five Americans experiences
a mental disorder in a given year, and half of all Americans
have such disorders at some time in their lives. However,
according to the author, nearly two-thirds of those affected
never seek treatment. The author also argues that there are
high monetary costs associated with maintaining the current
Lanterman Petris Short Act (LPS Act), in the form of excessive
sick leave and low worker productivity. Further, the state
pays the cost of multiple involuntary holds and incarcerated
mentally ill offenders. The author asserts that the state and
society can pay less in timely, humane intervention up front,
or continue the more expensive status quo of shameful neglect
and abandonment of the mentally ill.
3)SUPPORT . Supporters of this bill include the California
Psychiatric Association (the Psychiatric Association), the
National Alliance for the Mentally Ill (NAMI California), the
California State Sheriffs Association (CSSA), and the County
of Los Angeles. The Psychiatric Association argues that this
bill will save suffering, time and expense by consolidating
into one hearing the issues of whether a person meets the
criteria for involuntary commitment, and whether the person
does or does not have the capacity to consent to medication.
The Psychiatric Association notes that persons with serious
mental illness can frequently function well when treated, and
deteriorate badly in the absence of treatment. If a hearing
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officer can consider this history, in addition to whether a
person is immediately dangerous or disabled, the individual
can be moved again into treatment before completely
deteriorating and becoming a danger to him/her self or others.
The Psychiatric Association notes that there are too many
examples of cases where a person did not appear to be
sufficiently deteriorated for a short period of time, was not
detained or was prematurely released, and then committed
murder or suicide. Finally, the Psychiatric Association notes
that a recent Duke University study indicates that for
outpatient treatment to be effective, it must be at least 180
days in duration, and that one year is even more effective.
NAMI California argues that the LPS Act does not provide
sufficient protections for the mentally ill, relegating them
to a revolving door pattern of hospitalization,
criminalization and homelessness. NAMI California hopes that
this bill will be enacted to provide earlier intervention to
improve prognoses, lower the long term cost of care, and save
lives. NAMI California notes a UCLA study that examined those
diagnosed with schizophrenia whose inpatient treatment was
interrupted by release at judicial hearings. Those with early
release who failed to meet the current commitment standards
subsequently incurred 44 times more jail days than those who
met the standards and thereby received treatment. CSSA points
to the large percentage of incarcerated persons who suffer
from mental illness, and notes that the intent of the LPS Act
was to shift the focus from inpatient involuntary care to
community care settings. Yet, the problem of mentally ill
persons continued to grow as community services were
shrinking. CSSA argues that this bill shifts the focus back
to the medical professionals who are trained to identify and
treat mental illness. Los Angeles County notes that this
bill's appropriation recognizes that additional state funds
are necessary to modify California's mental health system.
4)OPPOSITION . Organizations opposing this bill include the
California Mental Health Planning Council (Planning Council),
the California Network of Mental Health Clients (Network of
Mental Health Clients), the California Psychological
Association (the Psychological Association) and the California
Association of Mental Health Patients' Rights Advocates
(CAMHPRA). The Coalition Advocate for Rights, Empowerment and
Services (CARES), consisting of CAMHPRA, the California
Association of Social Rehabilitation Agencies, the Network of
Mental Health Clients and Protection and Advocacy, issued a
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joint analysis and statement in opposition to this bill.
CARES argues that this bill unconstitutionally seeks to commit
individuals who are neither presently nor imminently
dangerous, abrogates informed consent rights for detained
individuals, eviscerates due process protections for persons
who are involuntarily committed, and unconstitutionally
reduces the standard of proof for long-term commitment and
conservatorships. CARES notes that in Conservatorship v.
Smith (187 Cal. App. 3d 903), the California Court of Appeal
opined that "(b)izarre or eccentric behavior, even if it
interferes with a person's normal intercourse with society,
does not rise to a level warranting a conservatorship except
where such behavior renders the individual helpless to fend
for herself or destroys her ability to meet those basic needs
for survival. Only then does the interest of the state
override her individual liberty interest." CARES contends
that this bill institutes a vague and broad definition of
grave disability that provides for the confinement of mentally
ill persons to raise their standards of living, a purpose
repeatedly rejected by the courts as constitutionally
inadequate.
The Mental Health Planning Council agrees that many aspects of
the mental health system should be reformed, and believes that
the recently established Joint Committee on Mental Health
Reform will be an excellent forum for identifying needed
system reforms and for expanding treatment resources. The
Planning Council recently sponsored approximately 40 public
forums to examine how to address different aspects of mental
health system reform. The Planning Council notes that themes
developed at these forums are being addressed through
legislation such as AB 2034 (Steinberg) and SB 1464 (Johnson)
which expand the provision of outreach and comprehensive
mental health services. SB 1770 (Chesbro) provides for
advance directives and discharge planning. The Network of
Mental Health Clients argues that enhanced voluntary services,
not the expansion of forced treatment, is the answer to mental
suffering. The Network points to a recent U.S. Surgeon
General report, which states, "One point is clear: the need
for coercion should be reduced significantly when adequate
services are readily accessible to individuals with severe
mental disorders who pose a threat of danger to themselves or
others." The Network is concerned that the subjective
criteria for commitment in this bill, coupled with the
reduction of due process safeguards, will return California to
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abuse of civil commitment and the violation of civil rights as
occurred prior to enactment of the LPS Act. The Psychological
Association notes that this legislation proposes to restrict
all treatment planning and decision making regarding
individuals involved in community assisted treatment to
physicians, eliminating psychologists from this process. As
written, the Psychological Association argues, this bill will
overturn more than 30 years of legislative and judicial
recognition of psychologists' independent authority in both
inpatient and outpatient settings.
5)THE DILEMMA: DELUSIONAL BUT NOT DISABLED . Under the current
law standard, a person may only be considered gravely disabled
and eligible for involuntary treatment if that person is
unable to provide for his or her basic needs for food,
clothing and shelter. Further, a person may not be considered
gravely disabled if that person can survive and meet these
needs with the assistance of friends and family members.
Families and other caregivers often bear a tremendous burden
of caring for mentally ill persons who are alternately
unstable or functional without sufficient community or
clinical support. For example, someone might be schizophrenic
and delusional, but if that person has an involved family, or
can otherwise obtain food, clothing and shelter, current law
does not provide for involuntary treatment that could help
that person function at a higher level. The policy challenge,
in part, is how to afford such a person effective treatment
while safeguarding against unnecessary or unconstitutional
infringement of individual liberties.
6)STANDARDS VARY BY ZIP CODE . One may enjoy differing standards
of due process rights and access to treatment according to
one's location in California. For example, a county may
adhere to a very limited application of the gravely disabled
standard due to pressures against spending limited resources
on mental health treatment, or due to limited resources for
hospitalization. Similarly, there might be more incentives to
hospitalize a person in a county where community based
services are negligible. The committee may wish to consider
requiring the Department of Mental Health to evaluate the
implementation of current LPS standards. Following such an
evaluation, the Legislature may wish to consider training
those who are involved in the involuntary commitment process
at the local level, funding additional treatment services,
including help for those with dual diagnoses of mental illness
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and substance abuse, and developing a mechanism for holding
counties accountable for implementation of LPS standards and
ensuring that mentally ill persons receive sufficient
treatment.
7)DECREASING BURDEN OF PROOF . This bill weakens the standard of
proof needed to establish a conservatorship from beyond a
reasonable doubt, which is the current case law standard in
California, to clear and convincing evidence. It is unclear
whether this differing standard of proof would be considered
constitutional under federal and state prohibitions against
depriving a person of liberty without due process and equal
protection under the law. Although states possess the right
to act paternally to protect those who are unable to care for
themselves, the power to restrict individual liberties has
also been limited in case law to permitting states to
accomplish public health goals by the least restrictive means
possible. This bill also eliminates the requirement that a
separate hearing take place to determine if a person who is
involuntarily committed has the capacity to provide informed
consent, and thereby agree to or refuse, medication. A
psychiatric hospital must petition for a capacity hearing
before administering medication without patient consent. At
the same time, the standard for certification following a
72-hour hold is tightened by requiring that a person be
gravely disabled or dangerous, and lack capacity to make
informed decisions in order to be subject to continued
detention.
8)MENTAL HEALTH MILESTONES: A HISTORY OF UNDER-FUNDING . The
Legislative Analyst's Office recently issued Major Milestones:
43 Years of Care and Treatment of the Mentally Ill , a report
detailing policy and fiscal changes in California's public
mental health system. This report further delineates the
enactment of the LPS Act in 1968 and the funding shortfalls
for both inpatient and community outpatient mental health
services in the following decades.
9)UNCLEAR FUNDING ALLOCATION AND ACCOUNTABILITY . This bill
appropriates $350 million from the General Fund to the
Controller in 2000-2001 for implementation of the purposes of
this bill. There are no specifications in this bill as to how
this money should be spent - inpatient or outpatient
treatment, training of law enforcement and mental health
professionals, family caregiver assistance, Medi-Cal
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reimbursement, patient advocacy - nor are there provisions to
hold counties accountable for attaining public mental health
policy goals with this funding.
10)RELATED LEGISLATION . At least 27 bills relating to mental
health are pending before the Legislature. These proposals
address subjects including mentally disordered adults and
children, school intervention and prevention, police officer
training, patient advocacy, suicide treatment and prevention,
advance directives, discharge planning, mental health courts,
dual diagnoses of mental illness and substance abuse, and
funding for outreach and treatment services.
11)DRAFTING CONCERNS: COMMUNITY ASSISTED TREATMENT . It appears
that the requirements for the community assisted treatment
plan in this bill require an inpatient physician to develop a
community treatment plan. It is unclear if the "treating
physician" is intended to require the physician to develop a
plan that then will be monitored by another treatment team in
the community program. Also, this section of the bill
requires establishment of a treatment plan agreed upon by "all
parties." It is unclear who the parties might be, and whether
those parties include particular medical staff, the patient,
or the patient's involved family members.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State County and Municipal Employees
California Clients for Lanterman Petris Short Reform
California Psychiatric Association
California State Sheriffs' Association
California Treatment Advocacy Coalition
Citrus Valley Health Partners
Coalition on Homelessness, San Francisco
County of Los Angeles
Family Alliance for the Mentally Ill, Southern Santa Barbara
Los Angeles County Alliance for the Mentally Ill
Los Angeles Count Police Chiefs Association
Memorial Counseling and Psychiatric Services
National Alliance for the Mentally Ill, California
National Alliance for the Mentally Ill, East San Gabriel Valley
National Alliance for the Mentally Ill, Nevada County
National Alliance for the Mentally Ill, San Bernardino
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National Alliance for the Mentally Ill, San Diego
National Alliance for the Mentally Ill, Santa Clara County
New York Treatment Advocacy Coalition
Santa Barbara Mental Health Association
Stanley Foundation Research Programs
Treatment Advocacy Center
Numerous individuals
Opposition
Alameda County Network of Mental Health Clients
California Association of Mental Health Patients' Rights
Advocates
California Association of Social Rehabilitation Agencies
California Mental Health Planning Council
California Network of Mental Health Clients
California Psychological Association
Consumers Self-help Center
Disability Rights Advocates
Homeless Action Center
Instant Court Reporting
Legal Aid Society of San Francisco
LeRoy Chiropractic
Mental Health Association of San Francisco
Mental Health Consumer Concerns
National Association for Rights Protection and Advocacy
Protection and Advocacy, Inc.
Quinto Farms
Residential Specialists, Inc.
Silva Construction
Theta Engineering
Vermeer Enterprises
Numerous individuals
Analysis Prepared by : Ann Blackwood / HEALTH / (916)319-2097